advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Wednesday, April 16, 2014

Sec.149 I.P.C. - common object - consideration of each role does not arise -Apex court held that The eye witnesses who are natural witnesses, being brothers, have deposed in an unequivocal manner about the assault by all the accused persons. The common object is clearly evident. In such a situation, attribution of specific individual overt act has no role to play. All the requisite tests to attract Section 149 IPC have been established by the prosecution.=Om Prakash … Appellant Versus State of Haryana …Respondent = 2014 ( April. Part ) http://judis.nic.in/supremecourt/filename=41419

       Sec.149 I.P.C. - common object - consideration of each role does not arise -Apex court held that The eye witnesses who  are  natural  witnesses,  being  brothers,  have deposed in an unequivocal manner  about  the  assault  by  all  the accused persons.   The common object is clearly evident.  In such  a situation, attribution of specific individual overt act has no role to play.  All the requisite tests to attract Section 149  IPC  have been established by the prosecution.=

Common object of an unlawful assembly can also be gathered from the
        nature of the assembly, the weapons used by  its  members  and  the
        behavior of the assembly at or before the scene of occurrence.   
It
        cannot be stated as a general proposition of  law  that  unless  an
        overt act is proven against the person  who  is  alleged  to  be  a
        member of the unlawful assembly, it cannot be held  that  he  is  a
        member of the assembly.  
What is really required to be seen is that
        the member of the unlawful assembly should have understood that the
        assembly was unlawful and was likely to  commit  any  of  the  acts
        which fall within the purview of Section 141 IPC.  
The core of  the
        offence is the word “object” which means the purpose or design  and
        in order to make it common, it should be shared by  all.   Needless
        to say, the burden is  on  the  prosecution.   
It  is  required  to
        establish whether the accused persons were present and whether they
        shared the common object. 
 It is also an  accepted  principle  that
        number and nature of injuries is a relevant fact to deduce that the
        common object has developed at the time of incident.  (See Lalji v.
        State of U.P.[8], Bhargavan  and  others  v.  State  of  Kerala[9],
        Debashis  Daw  and  others  v.  State  of   West   Bengal[10]   and
        Ramachandran and others v. State of Kerala[11]).

    17. In the case at hand, as the evidence would clearly  show,  all  the
        accused persons had come together armed with lathis.  
Het Ram,  who
        died during the pendency of the appeal, was armed with a gun.   
The
        eye witnesses who  are  natural  witnesses,  being  brothers,  have
        deposed in an unequivocal manner  about  the  assault  by  all  the
        accused persons.  
The common object is clearly evident.  In such  a
        situation, attribution of specific individual overt act has no role
        to play.  All the requisite tests to attract Section 149  IPC  have
        been established by the prosecution.

    18. In view of our aforesaid analysis, as all the contentions raised by
        the learned counsel for the appellants  are  sans  substratum,  the
        appeals, being devoid of merit, stand dismissed.
       2014 ( April. Part ) http://judis.nic.in/supremecourt/filename=41419     
K.S. RADHAKRISHNAN, DIPAK MISRA

 IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDICTION


                      CRIMINAL APPEAL NO. 1102 OF 2006


      Om Prakash                                … Appellant


                                   Versus


      State of Haryana                                  …Respondent


                                    WITH


                      CRIMINAL APPEAL NO. 1103 OF 2006


      Radhey Shyam and others                   … Appellants


                                   Versus


      State of Haryana                                  …Respondent


                                    WITH


                      CRIMINAL APPEAL NO. 1104 OF 2006


      Mange Ram and others                              … Appellants


                                   Versus


      State of Haryana                                  …Respondent




                               J U D G M E N T




      Dipak Misra, J.





           The present appeals,  by  special  leave,  have  been  preferred
      against the common judgment and order dated 18.03.2005 passed  by  the
      High Court of Punjab and Haryana at Chandigarh in Criminal Appeal Nos.
      78-DB & 146-DB of 1997 with Criminal Revision No. 219 of 1997  whereby
      the court has declined to interfere with the  judgment  of  conviction
      and order of sentence passed by  the  learned  Addl.  Sessions  Judge,
      Hisar in Sessions Case No. 40 of 1993 for the offences under  Sections
      148 and 302 read with Section 149 of IPC and affirmed the sentences of
      imprisonment for life and payment of fine of Rs. 1000/- by  each  with
      the default clause under Section 302 read with Section 149 of IPC  and
      rigorous imprisonment of two years under  Section  148  IPC  with  the
      stipulation that both the sentences shall be concurrent.

     2. Shorn of unnecessary details, the prosecution version  is  that  on
        28.06.1993 the informant, Satbir Singh, PW 3, along  with  his  two
        brothers, namely, Mahinder Singh, PW 7 and Prabhu Dayal  (deceased)
        had gone to Hisar to enroll themselves in the Border Security Force
        for which interviews were being held at Hisar.  About 3.00 p.m. all
        of them returned from Hisar in a Machanised Cart (Pater Rehra)  and
        alighted at the bus stand of  their  village,  Sadalpur.   At  that
        time, the accused-appellants, namely, Man Singh, Radhey Sham,  Bhal
        Singh, Ram Kanwar, Raja Ram, Mange Ram, Kirpa Ram  and  Prem  Singh
        emerged from the rear of Kotha (chamber), located nearby,  Het  Ram
        armed with a gun and all others armed with  lathis.   All  of  them
        raised a lalkara with the intention to assault  the  informant  and
        his two brothers, Mahinder Singh and Prabhu Dayal, as the later had
        earlier caused injuries to them.   Forming  an  unlawful  assembly,
        with the common object they inflicted injuries on Prabhu Dayal with
        their lathis and butt of the gun.  Prabhu Dayal fell  down  on  the
        road.  Being scared, the informant and his brother  Mahinder  Singh
        ran  away  and  stood  near  the  wall  of  the  water   reservoir.
        Thereafter, Om Prakash came on a tractor bearing  registration  No.
        HR-20A-8022, ran over Prabhu Dayal and fled away from the scene  of
        occurrence along with their weapons in the tractor.  The  informant
        and his brother Mahinder Singh went to see the condition of  Prabhu
        Dayal who had sustained injuries on his arms, legs, waist and  head
        and bleeding profusely.  He was taken to the  Government  Hospital,
        Adampur in a Machanised Cart  and  first  aid  was  given  to  him.
        During his examination by the medical officer he succumbed  to  his
        injuries at 5.50 p.m. and the hospital staff  informed  the  nearby
        police station about his death. The Investigating Officer,  Ronaski
        Ram, PW-8, recorded the statement of Satbir  Singh,  PW-3,  and  on
        that base registered an  FIR  No.  100/93  at  7.45  p.m.  and  the
        criminal law was set in motion.

     3. In course of investigation, the investigating agency  prepared  the
        inquest report, got the post mortem  conducted  and  collected  the
        blood stained earth vide seizure memo Ext. PM.   On  2.07.1993  the
        Investigating Officer arrested Man Singh, Radhey Shyam, Ram  Kumar,
        Raja Ram and Om Prakash. All  of  them  led  to  discovery  of  the
        weapons used in the alleged commission of crime.  After  completing
        the   investigation   charge-sheet   was   placed    against    the
        aforementioned accused persons.

     4. The accused persons pleaded innocence and false implication due  to
        animosity.  Be it noted, in course of trial after some evidence was
        recorded, the learned trial Judge, on the basis of  an  application
        preferred by the public prosecutor under Section 319  of  the  Code
        summoned the other accused persons, namely, Bhal Singh, Mange  Ram,
        Kirpa Ram, Het Ram and Prem Singh to face trial.

     5. In order  to  prove  its  case,  the  prosecution,  examined  eight
        witnesses, namely, Dr. Pratap Singh, PW-1, Om Prakash, Patwari, PW-
        2, Satbir Singh, PW-3, Dr. P.L. Jindal, PW-4, Basant  Kumar,  PW-5,
        Ram Kumar, Asst. Sub Inspector,  PW-6,  Mahinder  Singh,  PW-7  and
        Ronaski Ram, Investigating officer, PW-8.  No evidence  in  defence
        was adduced by  the  accused.  However,  a  copy  of  the  judgment
        relating to land dispute between the parties and copy of FIR No.  6
        dated 9.1.1993 and copy of Election Petition,  Ext.  DC  titled  as
        Sohan Lal v. Nardwari and  others  were  tendered  in  evidence  to
        substantiate the plea  of  enmity.   The  learned  trial  Judge  on
        appreciation of evidence brought on record came to  hold  that  the
        prosecution had brought home  the  charges  beyond  any  reasonable
        doubt and, accordingly,  convicted  all  the  accused  persons  and
        sentenced each of them as has been stated hereinbefore.

     6. Being dissatisfied with the judgment of  conviction  and  order  of
        sentence the accused persons preferred appeal before the High Court
        raising many a stand and stance.  The High Court repelled  all  the
        contentions by holding that there was no delay in  lodging  of  the
        FIR;  that  there  was  enmity  between  the  parties  inasmuch  as
        litigations were pending; that the two eye witnesses Satbir  Singh,
        PW-3, and Mahinder Singh, PW-7, are  natural  witnesses  and  their
        testimony  could  not  be  discarded  solely   because   of   their
        relationship  with   the   deceased;   that   their   evidence   is
        unimpeachable and the contradictions being minor do not create  any
        dent  in  their  version;  that  the  medical  evidence   assuredly
        corroborates the ocular testimony of the eye  witnesses;  that  the
        defective and tilted investigation would not corrode  the  evidence
        brought on record which prove the case of the  prosecution  to  the
        hilt and, eventually, gave the stamp of approval to the verdict  of
        the trial court.

     7.  Mr. Ram Niwas Kush, learned counsel appearing for the  appellants,
        has urged that there is delay in lodging of the FIR inasmuch though
        the occurrence took place about 3.00 p.m.,  yet  the  FIR  was  not
        lodged till 7.45 p.m. and in the backdrop of enmity there was ample
        time to think, add and embellish the versions, apart from roping in
        number of persons, which creates a grave  suspicion  in  the  whole
        case put forth by the prosecution.  Learned counsel  would  contend
        that the evidence brought on record do not remotely  prove  that  a
        tractor has made to run over certain  parts  of  the  body  of  the
        deceased as alleged by the prosecution  and,  therefore,  both  the
        courts have fallen into error by  recording  the  conviction.   The
        last plank of submission is that all the accused persons could  not
        have been convicted under Section 302 IPC in  aid  of  Section  149
        IPC.

     8. Mr. Ramesh Kumar, learned counsel  for  the  State,  supported  the
        conviction and the sentences recorded by the trial court which  has
        been concurred with by the High Court, on the ground that  the  FIR
        was lodged in quite promptitude and the appreciation of evidence by
        both the courts is absolutely flawless.

     9. First, we shall deal with the contention  pertaining  to  delay  in
        lodging of the FIR.  It is not in dispute that the occurrence  took
        place about 3.00 p.m. and thereafter, the deceased was carried by a
        merchandised cart  to  the  primary  health  centre  where  he  was
        administered some treatment but he succumbed to his  injuries.   On
        being informed by the hospital staff, the  police  arrived  at  the
        hospital and recorded the statement of the informant, Satbir Singh,
        PW-3, and thereafter an FIR was registered at 7.45 p.m.   From  the
        sequence of  the  events  which  include  consumption  of  time  in
        carrying the injured to  the  hospital,  treatment  availed  of  by
        Prabhu Dayal, information given by the concerned authority  of  the
        primary health centre and arrival of police and also taking note of
        the distance, i.e., 24 kilometers from the place of occurrence,  we
        do not think that there is any delay in lodging of the  FIR.   That
        apart, it is settled in law that mere delay in  lodging  the  first
        information report cannot by itself be regarded  as  fatal  to  the
        prosecution case.  True it is, the court has a duty to take  notice
        of the delay and examine the same in the backdrop  of  the  factual
        score, whether there has been any acceptable explanation offered by
        the prosecution and whether the  same  deserves  acceptation  being
        satisfactory,  but  when  delay  is  satisfactorily  explained,  no
        adverse inference is to be drawn.  It is to be seen  whether  there
        has been possibility of embellishment in the prosecution version on
        account of such  delay.   These  principles  have  been  stated  in
        Meharaj Singh v. State of U.P.[1], State of H.P. v. Gian  Chand[2],
        Ramdas and others v. State of Maharashtra[3], Kilakkatha  Parambath
        Sasi and others v. State of Kerala[4] and Kanhaiya Lal  and  others
        v. State of Rajasthan[5].

    10. In the present case, as we find,  there  is,  in  fact,  no  delay.
        Learned counsel for the appellants would emphasise on  the  concept
        that effort has to be made to lodge the report at the earliest, but
        the “earliest”, according to us, cannot be put in  the  compartment
        of absolute precision.  Apart from what we have stated, the  impact
        of the crime on the relations who are eye witnesses, the shock  and
        panic which would rule supreme  at  the  relevant  time  and  other
        ancillary aspects are also to be kept in mind.  That apart,  as  we
        notice, the FIR is not the result of any  embellishment  which  has
        the roots in any kind of afterthought.  Considering the totality of
        facts and circumstances the submission of learned counsel  for  the
        appellants pertaining to delay in lodging of the FIR being  totally
        unacceptable is hereby rejected.

    11. The next limb of submission is that the evidence brought on  record
        do not establish beyond doubt that the accused Om Prakash had run a
        tractor on the deceased.  In this context, Satbir Singh, PW-3,  and
        Mahinder Singh, PW-7, the elder  brothers  of  the  deceased,  have
        categorically deposed that the accused persons had given blows with
        lathis and Om Prakash had run the tractor over the  deceased.   Dr.
        Jindal, PW-4, who had examined the deceased  prior  to  death,  had
        found 11 injuries on his body.  He had not expressed any opinion on
        injury Nos. 1, 2, 4, 5 and 8 and observed that final opinion  would
        be expressed after x-ray had been done.   In  examination-in-chief,
        referring to his opinion, Ex. PK/1, he has stated that injuries  on
        both legs and arms on the person of the deceased could be caused by
        tractor wheels and the other injuries  could  be  caused  by  lathi
        blows.  In the cross-examination barring that he had not found  the
        tyre mark on the pyjama of the injured nothing substantial has been
        elicited.

    12. Dr. Partap Singh, PW-1, who conducted the autopsy,  had  found  the
        following injuries: -

           “1.  A stitched wound 1 ¼ long on the  right  side  of  parental
                 region one inch above the hair line.  On exploration, there
                 was extra vacation of blood in layers scalp.  The wound was
                 superficial.

           2.   A scabbed abrasion 1” x 1” on the right cheek.  It was  red
                 in colour.

           3.   Multiple contusions of various sizes  and  shape,  covering
                 the back of chest and abdomen.  Reddish in colour.

           4.   A stitched wound ½” long on the back of upper arm on  right
                 thigh.  Wound was bone deep.

           5.   Multiple contusions covering the upper half of right  fore-
                 arm, right elbow and lower half of right upper, reddish  in
                 colour.   On  exploration,  the   underlying   bones   were
                 fractured (right humorous and upper part  of  right  radius
                 and ulna.)

           6.   A lacerated wound ½ inch long and ¼” wide,  and  bone  deep
                 present on the upper part of left fore-arm.

           7.   A stitched wound 1” long on the  back  of  middle  of  left
                 upper arm.  Clotted blood was present.

           8.   Multiple contusions covering the lower part of  left  upper
                 arm, elbow and upper part  of  left  fore-arm,  reddish  in
                 colour.  The underlying bones (upper part of  left  radius,
                 ulna and lower part of left humorous) were fractured.

           9.   A lacerated and stitched wound 1” long present on the  left
                 of leg on its middle.   Clotted  blood  was  present.   The
                 underlying bones were fractured.

           10.  A lacerated and stitched wound 1” long present just  medial
                 to injury No. 9, clotted blood was present.

           11.  A lacerated and stitched wound  2”  long,  present  on  the
                 front of lower one third of right leg.

           12.  A stitched wound 1” long, 2 inch lateral to injury  No.  11
                 clotted blood was present.

           13.  A stitched wound 1 ½” long present 1 ½”  medial  to  injury
                 No. 11.  Clotted blood was present.”



    13. In his examination-in-chief he has clearly stated that some of  the
        injuries could have been  caused  by  the  relevant  organ  of  the
        body/struck by a blunt countering by the wheel of a  tractor.   The
        submission of the learned counsel for the appellants is that  there
        is no clear cut opinion by the two doctors and, in fact,  there  is
        an irreconcilable contradiction which would show that no injury was
        caused by running over of a tractor  falsifying  the  case  of  the
        prosecution.  The said submission leaves us unimpressed inasmuch as
        we really do not find that  there  is  any  contradiction  of  that
        nature which  would  cause  a  concavity  in  the  version  of  the
        prosecution.   As  we  find,  the   ocular   testimony   has   been
        corroborated by the medical evidence to  a  major  extent  in  that
        regard  and  hence,  it  would  be  inappropriate  to  discard  the
        prosecution  case.   That  apart,  the  mental  condition  of   the
        witnesses can be well appreciated and, in any case, they  were  not
        expected to state with exactitude how the injuries were  caused  by
        the tractor.   From  the  evidence  of  Dr.  Jindal,  PW-4,  it  is
        evincible that the injuries sustained by the deceased on  his  legs
        and arms could have been caused by the tractor wheels.  Similar  is
        the opinion of Dr. Partap Singh, PW-1 and in the  cross-examination
        he has explained why crush injuries were not  there.   It  is  also
        worthy to mention that nothing has  been  elicited  in  the  cross-
        examination of the eye  witnesses  on  that  score.   In  fact,  no
        suggestion has also been given.  It has come out  in  the  evidence
        that all the accused persons had carried lathis  and  most  of  the
        injuries were caused due to lathi blows and some  by  the  tractor.
        Thus, the ocular testimony  gets  corroboration  from  the  medical
        evidence, and, therefore, the stance that the prosecution witnesses
        have made an effort to exaggerate their version ascribing a serious
        role to Om Prakash, in our considered  opinion,  is  mercurial  and
        deserves to be repelled and we do so.

    14. It is next submitted by learned counsel for the appellants that the
        so called eye witnesses have not ascribed any specific overt act to
        each of the accused and there are only  spacious  allegations  that
        they were armed with lathis and inflicted injuries on the deceased.
         In essence, the submission is that in the absence of any  specific
        ascription or attribution of any particular  role  specifically  to
        each of the accused Section 149 IPC would  not  be  attracted.   In
        this regard, we may refer to a passage from Baladin and  others  v.
        State of Uttar Pradesh[6] wherein a three-Judge  Bench  had  opined
        thus: -

           “It is well settled that mere presence in an assembly  does  not
           make such a person a member of an unlawful assembly unless it is
           shown that he had done something  or  omitted  to  do  something
           which would make him a member of an unlawful assembly, or unless
           the case falls under Section 142, Indian penal Code.”



    15. The aforesaid enunciation of law was  considered  by  a  four-Judge
        Bench  in  Masalti  v.  The  State  of   Uttar   Pradesh[7]   which
        distinguished the observations  made  in  Baladin  (supra)  on  the
        foundation that the said decision should be read in the context  of
        the special facts of the case and may not be treated as laying down
        an unqualified proposition of law.   The  four-Judge  Bench,  after
        enunciating the principle, stated as follows: -

           “It would not be correct to say that before a person is held  to
           be a member of an unlawful assembly, it must be  shown  that  he
           had committed some illegal overt act or had been guilty of  some
           illegal omission in  pursuance  of  the  common  object  of  the
           assembly.  In fact, S. 149 make it clear that if an  offence  is
           committed by any member of an unlawful assembly  in  prosecution
           of the common object of that assembly, or such as the members of
           the assembly knew to be likely to be committed in prosecution of
           that object, every person who, at the time of committing of that
           offence, is a member of the same assembly,  is  guilty  of  that
           offence; and that emphatically brings out the principle that the
           punishment prescribed by S. 149 is in a sense vicarious and does
           not always proceed on  the  basis  that  the  offence  has  been
           actually committed by every member of the unlawful assembly.”



    16. Common object of an unlawful assembly can also be gathered from the
        nature of the assembly, the weapons used by  its  members  and  the
        behavior of the assembly at or before the scene of occurrence.   It
        cannot be stated as a general proposition of  law  that  unless  an
        overt act is proven against the person  who  is  alleged  to  be  a
        member of the unlawful assembly, it cannot be held  that  he  is  a
        member of the assembly.  What is really required to be seen is that
        the member of the unlawful assembly should have understood that the
        assembly was unlawful and was likely to  commit  any  of  the  acts
        which fall within the purview of Section 141 IPC.  The core of  the
        offence is the word “object” which means the purpose or design  and
        in order to make it common, it should be shared by  all.   Needless
        to say, the burden is  on  the  prosecution.   It  is  required  to
        establish whether the accused persons were present and whether they
        shared the common object.  It is also an  accepted  principle  that
        number and nature of injuries is a relevant fact to deduce that the
        common object has developed at the time of incident.  (See Lalji v.
        State of U.P.[8], Bhargavan  and  others  v.  State  of  Kerala[9],
        Debashis  Daw  and  others  v.  State  of   West   Bengal[10]   and
        Ramachandran and others v. State of Kerala[11]).

    17. In the case at hand, as the evidence would clearly  show,  all  the
        accused persons had come together armed with lathis.  Het Ram,  who
        died during the pendency of the appeal, was armed with a gun.   The
        eye witnesses who  are  natural  witnesses,  being  brothers,  have
        deposed in an unequivocal manner  about  the  assault  by  all  the
        accused persons.  The common object is clearly evident.  In such  a
        situation, attribution of specific individual overt act has no role
        to play.  All the requisite tests to attract Section 149  IPC  have
        been established by the prosecution.

    18. In view of our aforesaid analysis, as all the contentions raised by
        the learned counsel for the appellants  are  sans  substratum,  the
        appeals, being devoid of merit, stand dismissed.




                                                             ……………………………..J.
                                                        [K.S. Radhakrishnan]






                                                             ……………………………..J.
                                                               [Dipak Misra]


      New Delhi;
      April 16, 2014.
-----------------------
[1]      (1994) 5 SCC 188
[2]      (2001) 6 SCC 71
[3]      (2007) 2 SCC 170
[4]      (2011) 4 SCC 552
[5]      (2013) 5 SCC 655
[6]      AIR 1956 SC 181
[7]      AIR 1965 SC 202
[8]      (1989) 1 SCC 437
[9]      (2004) 12 SCC 414
[10]     (2010) 9 SCC 111
[11]     (2011) 9 SCC 257

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.